NO. 07-04-0522-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D AUGUST 8, 2005

______________________________ SALVADOR ELISEO PENA, APPELLAN T

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 47TH DISTRICT COURT OF POTTER COUNTY; NO. 48,85 9-A; HONO RABLE H AL MINER , JUDGE

_______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ. MEMORAND UM OPINION Pursuantto a plea of not guilty, appellant Sal vador Eliseo Pena wa s convicted by a jury of possession of a controlled substance, enhanced, a nd punishment was assessed at60 yearsconfinement and a $5,000 fine. Presenting three i ssues, appellant asserts (1)1 Officer Alonzo testified he was una ble totest the substances at the scene because the last methamphe tamine te st kit had been recently use d. 2 the evidence is legall y and (2) factuall y insuffi cient to support afinding of guilt , and (3) he was deni ed effecti ve assis tance of counsel. We revers e and ren der. Officer Alonzo, a 25-year veteran of law enforcement, testified that on February 9, 2004, at approximately 9:30 p.m., he was on patrol in Potter County and while on Loop 335, he clocked a vehicle speeding and initiated a traffic stop. A female without identification was driving the vehicle and appella nt was th e passen ger. As i s customa rywhen someone has no identification, Alonzo asked the female, whoidentifi ed hersel f as Stacy Nugent, to exitthe vehicle and walk behind it to separately question appellant about her ide ntification. As Stacy walked away from the vehicle, Alonzo not iced some crinkled aluminum foil containing a plastic bag with a powdery substance in plain view on the conso le . When questioned about the substance, appellant responded it was for making cookies an d handed it to Alonzo. Alonzo had appell ant exit the vehicle and conducted a p at-down search. He discovered a substancein appellant’s coat pocket which appellant claimed he had obtained from his mother to make tortillas. 1 The suspects were handcuffed and placed in the patrol car. After backup arrived, Alonzo co nducted a search of the vehicle. The only other suspicious item found was a small pa ckage co nta ining white powder. Stacy and appell ant were driven to the departmentand arre sted. The substances weretested the followi ng mornin g; the con tents3

of the plastic bag wrapped in foil tested p ositive for 60.77 grams of methamphetamine and t he other substances tested negative for controlled substances. Althoug h appel lant ha d told Alonzo the substances were baking soda and masa, that was not confirmed. Byhis first issue, appellant contends theevidence is legall y insuffi cient to support a finding of guilt. We agree. In conducting a legal sufficiency revie w, we examine the verdict, after viewing the evidence in t he lightmost favo rable to the prose cution, to determine whether any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed. 2d 560, 5 73 (1979 ); Burden v. Stat e, 55 S.W.3d 60 8, 612 -13 ( Tex.Cr .App. 2001 ). This s tand ard is th e sam e in bo th direc t and c ircum stantia l evide nce case s. Burden , 55 S.W.3d a t 612-13. In meas uri ng the legal suffici ency of the e vide nce t o sust ain a con victi on, we measure the elements of the of fense as def ined by a hypot hetical ly co rre c t jury charg e. Mal ik v . St ate, 953 S.W. 2d 234 , 240 (Tex.C r.App . 1997 ). This is done by considering all the evidence that was before the jury—whether proper or improper—so that we can make an assessment from the jury's perspective. Miles v. State, 918 S.W.2d 511, 512 (Tex.Cr.App. 1996). As an appellate court, we may not sit as a thirtee nth juror , but mustuphold the jury's

verdict u nle ss it is i rrational or unsup ported by more than a “mere modicum” of evide nce. More no v. Sta te, 755 S .W.2d 866 , 867 (Tex.Cr.App . 1988). Before determining whether the evide nce i s sufficient to support appellant’s conviction, we must r

eview th e essenti al eleme nts th e Sta te was required to prove.4

Appellant

was char

ged with possessi on of meth amphetami ne of fou r gramso r more but less than 200 grams, a second degree felony. Tex . Health & Safety Co de Ann. § 481.115(d) (Vernon 2003). To prove unlawful possession of a con trolle d substance, the State was required to prove by direct or circumstantial evide nce that the accused (1) exercised actual care, custody, control, or management over the substance and (2) knew th e matter he possessed was contraband. Tex. Pen. Co de Ann. § 1.07(a)(39) (Verno n 2003). See alsoPoindex ter v. Sta te, 153 S .W.3d 402 , 405 (Tex.Cr. A pp. 2005), citing Joseph v. State, 897 S.W.2d 374, 376 (Tex.Cr.App. 1995). Theevidence must establish the accused ’s conne ction wi th the con trolled s ubstancewas moreth an just f ortuitous. Brown v. State, 91 1 S.W.2d 7 44, 747 ( Tex.Cr.A pp. 1995 ). When the accused is not in exclusive possession of the place where contraband is found or the contraband is not on the accused’s person, additional indep endent facts and circumstances must affirmativelylink hi m to the contraband. Deshong v. State, 625 S.W.2d 327, 329 (Tex.Cr.App. 1981). Affirmative links is a shorthand expression of what must be proven to establish that the accused possessed some kind of co ntraban d knowingly or intentionally

and is u sed to evaluate th e suffici ency of th e eviden ce. Brown , 911 S.W.2d at747. The affirmative links rule is a common sense notion designed to protect innocent bystanders–a par ent, c hild, spouse, roommate, or friend--from conviction based solely u pon his fortu itous proximity to someone else’s contraban d. Poindexter , 153 S.W.3d at 406.5

Affi rmative li nks may i nclu de, bu t ar e not li mited to: (1) appel lant ’s p res en ce when the contraband was f ound; (2) whether t he contraband was i n plai n vi e w; (3 ) ap pe llant’s prox imity to an d the accessi bil it y of the c ontr aband; (4) whether appel lant

was un der th e infl uence of narcot ics when arr ested; (5) whether appell ant possess e d othe r cont raband when arreste d; (6) w heth er ap pellan t ma de inc rimina ting state ments w hen arrested ; ( 7) whe t herappel lant

att empted t o fl ee; ( 8) whet her app ell ant made furt ive gestu res; (9) whether there was an odor

of t he cont raband; (10) whether other cont raban d or drug parap he rna lia was present; (11) whether appell ant owned or had t he right to possess th e place whe re t he drug s were f ound; (12) whether

the p lace the d rugs were foun d wa s encl osed; (13) the a mount of cont raband found ; ( 14) whet her app ell ant was the dr iver of the au tom ob ile in whi ch th e cont raband was foun d; and (15) whet her appel lant possess ed a large am oun t of cash
. See Tayl orv. Stat e. 106 S.W.3d 827 , 832 (Tex. App.–Dal las 2003, no pet.). See als o Tre jo v. State , 766 S .W .2d 38 1, 384 (Tex.A pp.-A ustin 1 989 , no pe t.). It is the l ogic al f

orce o f t hese f

actors, i ndiv idual ly o rcombined, which deter mines whether the State 's evide nce links ap pellan t to the co ntrab and
. Trej o, 766 S.W.2d at 38 5. Itis undisputed that appellant was neither theowner nor driver of the vehicle; he was merelya passenger. Thus, without appell an t being in exclusive possession of the substance, the Statewas requ ired to p resent in depende nt facts l inking h im t o it. As the State points o ut, the plastic bag wrapped in foil contai ning methamphetamine was in plain viewon the console and was in close proximity to appellant. Howeve r, during cross-6

examination, Officer Alonzo, the State’s only witness, negated anylink between appellant and the methamphetamine by testifying as follows:

C appellant was not under the influence of a controlled substance;

C appellant

confirmed Stacy’s identity and did not give aco n flicting statement;

C appellant was cooperative and not nervous whe n questioned;

C appellant

willingly handed him the plastic bag on the con sole when asked;

C nothing suspicious was found on the passenger’s side of the vehicle and no other contraband or paraphernalia was found in the vehicle or on appellant’s person;

C appellant did not attempt to hide the contraband;

C there was no attempt to flee nor any furtive gestures;

C appellant

complied when asked to exit the vehicle and submit to apatdown search; and

C the sm aller package found during the search of the vehi cle and th e contents found in appellant’s coat pocket both tested ne gative. Alonzo was also asked wheth er any attempt was made to l ift fingerprints from the plastic bags or fo il to wh ich he re sponded, “usuall y I don’t take fin gerprints .” More compelling evidence supporting appellan t’s lack of knowledge that the plastic bag on the console contained methamphetamine came from Alonzo. He testified regarding a reference appellant made to t he s ubstances being fake. When cross-examined about State’s Exhibit 3, which tested negative, Al onzo testified:7

Q. Well, even after he was at the office, he still told you when you asked him whatState’s Exhibit Number 3 was, he still told you it was fake stuff. Is that correct? A. He told me it was – all of this was fake stuff. That they were going to sell it to – an d excuse

my langu age to du mb fucks. It’s all fake shi t. Q. And -- A. But he had pointed at all of this [referring to the three State Ex hibits] stuff. O n redirect examination, the State attempted to show that appella nt int ended t o “step on” the methamphetamine, which means mixing in other su bstances such as sugar , saltflou r, and a spirin to increase profits. Once again, however, Alonzo explained that appellant

was refe rring to a ll the i tems and powder as “fake stuff.” On recross examination, Alonzo clarified that appellant did not dist inguish between fake stuf f and methamphetamine , but referr

ed to all the subs tances be ing fake
. After the State rested, the defense called Stacy to the sta nd. She chose to remain silent. The onl y item in troduced by the defense and admitted into evidence was a copy of a judgment of conviction for Stac y Nugent for possession of a controlled substance that occurred on Febru ary 9, 200 4. Although the Stateth eorized t hat appellant’s possession of “fake stuff” was for diluting controlled substances for increased profits, the evidence demonstrates appellant believed all the substances in the vehicle and in his coa t pocket were “fake stuff” he intended to sell to “dumb f ucks.” The Sta te asserts in its brief that “appellant lied about the purpose of the substance (it was for making cookies),” and “appellant admitted exercising2 We are cognizant that it is an offense to intend to deliver or deliver a simulated

controlled substance. See Tex. He alth & Safety C ode Ann. § 482.00 2(a) (Vern on 2003)
. See generally

Rodriguez v. State, 879 S.W.2d 283 (Tex.App.–Houston [14th Dist.] 1994, pet. ref’d) (reversing a conviction for delivery of a controlled substance because th e defendantshould have been cha rged with delivery of a simulated controlled substance for selling flour he expressly represented as cocaine). Appellant was not charged wi th intent to deliver, only possession. 8 control over the substance when he stated he inten ded to se ll it to ‘dumb fucks;’” however, the Statedoes not

reference

any auth ority cri minalizi ng lying or posse ssing “fa ke stuff.” 2 Alonzo’s testimony negates anyknowledge by appellant that the plastic bag found on the cons ole contained me thampheta mine. Fu rther, theState failed to prove appellant exercised care, cus tody, con trol, or ma nagement over the methamphetamine or that his connection to it was mo re than just fortuitous. Appellant’s status as a passenger in the vehicle driven by

Stacy, coupled with his insistence that all the subs tances we re “fake s tuff” is notsufficient evidence to suggest he had knowledge that the powder in the plastic bag was methamph eta mine
. See generally Roberson v. State, 80 S.W.3d 730, 742 (Tex.App.–Houston [1st Dist.] 2002, pet. ref’d) (reversing and rendering ajudgme nt of acquittal because the evidence was legally insufficient to provide the required affirmative link between appella nt and th e cocain e). Viewin g the evi dence un der Jackson , we find it does not create the logical force ne cessary to allow a rational jury to conclude beyon d a reasonable doubt t hat appellant had knowledge of the methamphetamine. Issue one is sustained. Our

disposition of this issue pretermits consideration of issues two and three.9

Accordingly, the judgment of the trial court is reversed and a judgment of acquittal is hereby rendered. Don H. Reavis Justice Do not publish.